The Courts Will Likely Let Trump Declare an ‘Emergency,’ Even If It’s Made Up

After toying with the idea for weeks, President Trump is expected to declare a national emergency to deal with what he calls a “national security and humanitarian crisis” at the border with Mexico. The move is a patent abuse of power, and it will generate a raft of legal challenges. But thanks to a lack of checks and balances in our legal system for emergency powers, the success of these challenges is not the foregone conclusion it should be.

Let’s start with the basics: There is no emergency. Fact-checkers have already ripped apart the misleading statistics Trump has presented, and official government data show that illegal border crossings remain near their lowest point in the past four decades. Indeed, the very fact that Trump hesitated for so long before declaring an emergency suggests there is none.

Trump has explained why he waited by saying that he first wanted to give Congress a chance to pass legislation that would fund the border wall. But the purpose of emergency powers is to give the president access to standby authorities, passed by Congress in advance, that can be deployed in cases where Congress has no time to act. If Congress does have time and has refused to give the president the authority he seeks, resorting to emergency powers to get around the objections of lawmakers is not just inappropriate. It’s a brazen attempt to undermine the constitutional balance of powers.

Given these circumstances, it might seem that the courts would put a quick stop to the president’s antics. But the National Emergencies Act, passed by Congress in 1976, will not make things easy for anyone preparing litigation to stop Trump. The law gives the president complete discretion to declare a national emergency; there is no definition of emergency and no criteria that must be met. As a result, most judges would tend to defer to the president’s determination that an emergency does exist, however much of a stretch it might seem.

That doesn’t mean the president has carte blanche to violate the Constitution under the guise of false emergencies. With sufficient evidence that Trump is acting in bad faith — that he is abusing the discretion Congress granted him for the purpose of subverting constitutional constraints, including the prohibition on spending funds that Congress has not appropriated — a judge could still find that the emergency declaration is invalid.

Nor does an emergency declaration give the president unlimited powers. It gives him access to specific authorities contained within 123 laws that Congress has passed over several decades. In this case, the president is relying on laws that allow the secretary of defense, during a national emergency, to move money around within Pentagon’s budget for certain purposes. As multiple legal experts have already pointed out, it’s at best questionable whether these laws would authorize the building of the wall.

Still, the Supreme Court has already shown its willingness to defer to Trump on claims of national security. When he invoked broad immigration powers to ban travel from majority-Muslim countries after revising the ban twice to deal with objections from lower courts, five Supreme Court justices were willing to credit paper-thin national security justifications and ignore obvious signs of an unconstitutional motive. There is a risk that the Supreme Court or other courts could take a similar approach here — and that they could choose to read the emergency powers themselves quite broadly.

And even if the current emergency is struck down by the courts, it could be a short-lived victory. The next time Trump concocts an emergency, he might be less vocal about his intent to circumvent Congress, and the laws he invokes might be a better fit for his goals. Some of these emergency laws confer extraordinary powers that are ripe for abuse, including laws that allow the president to take over or shut down communications facilities and to freeze Americans’ bank accounts. Previous presidents have shown considerable restraint in using them — nearly 70 percent of these laws remain unused decades after the National Emergencies Act was passed — but self-restraint is not one of this president's hallmarks.

Trump’s move shows that it’s long past time for Congress to revisit the National Emergencies Act. While presidents should have significant leeway to decide what is an emergency, that discretion must not be unlimited. Congress should fix its previous omission by setting forth basic criteria for what constitutes an emergency — for instance, the situation must represent a significant departure from the norm and must pose an imminent threat to public safety or other important national interests.

That safeguard won’t be foolproof, so Congress should also enact better ways to deal with emergencies that were improperly declared or that are lasting too long. Currently, the president can renew emergency declarations indefinitely, and Congress can terminate a declaration only by passing a law and sending it to the president for his signature. The president would almost certainly veto it — meaning that Congress would have to muster a veto-proof supermajority to end the state of emergency. Such a vote has never even been attempted.

Congress should replace this weak backstop with the system used by many other countries: The head of state can declare an emergency, but it is strictly time-limited, and only the legislature can renew it. This approach would eliminate the perverse incentives that exist when the government actor who declares the emergency is the same one receiving the enhanced powers. It would ensure that presidents have access to broad emergency powers when they are most needed, while guarding against the type of “permanent emergencies” that characterize many authoritarian regimes.

In ordinary times, it might sometimes seem that we can dispense with these kinds of checks and balances in the name of efficiency. It takes extreme circumstances to remind us that this is a bad bargain — and always was. Whatever ends up happening with the wall, this incident should serve as a wake-up call that Congress must reform our system of emergency powers to include better protections against abuse.